Citation Nr: 0730565
Decision Date: 09/27/07 Archive Date: 10/09/07
DOCKET NO. 03-36 318 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to compensation under the provisions of
38 U.S.C.A. § 1151, for residuals associated with a fracture
of the right knee, to include traumatic arthritis and an
anterior cruciate ligament (ACL) tear.
2. Entitlement to a total disability rating based upon
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from March 1974 to March
1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2003 rating decision of the
Winston-Salem, North Carolina Department of Veterans Affairs
(VA) Regional Office (RO).
In April 2004, the veteran presented personal testimony
before a Hearing Officer at the RO. A transcript of that
hearing is of record in the claims folder.
The Board remanded the instant case for further development
in June 2006. This case is now ready for appellate review.
FINDINGS OF FACT
1. There is no competent medical evidence which shows that
the veteran has an additional disability of the right knee
due to VA treatment or lack thereof.
2. The veteran is a high school graduate with three years of
college and specialized training as a tool machinist.
3. The veteran's service-connected disabilities are right
median nerve palsy with probable neuroma, rated 50 percent
disabling, callus of the left foot, rated 10 percent
disabling, callus of the right foot, rated 10 percent
disabling, and tender scar, right wrist, associated with the
right median nerve palsy with probable neuroma, rated as 10
percent disabling. The combined rating is 70 percent.
4. The veteran's service-connected disabilities alone are
not of such severity as to preclude substantially gainful
employment.
CONCLUSIONS OF LAW
1. The criteria for entitlement to compensation under 38
U.S.C.A. § 1151 for residuals associated with a fracture of
the right knee, to include traumatic arthritis and an ACL
tear, as a result of lack of VA treatment have not been met.
38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.361 (2007).
2. The criteria for a TDIU rating have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.16 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Assist and Notify
Under the Veterans Claims Assistance Act of 2000 (VCAA), VA
is required to notify the veteran of any evidence that is
necessary to substantiate his claim. This includes notifying
the veteran of the evidence VA will attempt to obtain and
that which the veteran is responsible for submitting. Proper
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that the VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his possession that
pertains to the claim. See 38 C.F.R. § 3.159 (2007). These
notice requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability;
a connection between the veteran's service and the
disability; degree of disability; and the effective date of
the disability. See Dingess v. Nicholson, 19 Vet. App. 473
(2006). Such notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
is issued by the agency of original jurisdiction. Pelegrini
v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice
errors (either in timing or content) are presumed
prejudicial, but VA can proceed with adjudication if it can
show that the error did not affect the essential fairness of
the adjudication by showing: 1) that any defect was cured by
actual knowledge on the part of the claimant; 2) that a
reasonable person could be expected to understand from the
notice what was needed; or 3) that a benefit could not have
been awarded as a matter of law. Sanders v. Nicholson, 487
F.3d 881 (2007).
In this case, in letters of March 2002, February 2005,
July 2006, and January 2007, the RO provided notice to the
veteran regarding what information and evidence is needed to
substantiate the claims for compensation for benefits
pursuant to 38 U.S.C.A. § 1151 and TDIU. The letters
specified what information and evidence must be submitted by
the veteran, what information and evidence will be obtained
by VA, and the need for the veteran to advise VA of or submit
any further evidence that pertains to his claims. The Board
notes that the veteran did not initially receive notice as to
the disability rating and the effective date elements, as
required by Dingess. Subsequent to the Board's remand of
June 2006, the veteran later received notice as to the
disability rating and the effective date elements. The
deficient timing of the correct VCAA notice is presumed
prejudicial. The Board finds that such presumption of
prejudice is rebutted because this error did not affect the
essential fairness of the adjudication. Following the
notice, the veteran was given an opportunity to submit
additional evidence and the veteran's claims were
readjudicated in May 2007.
The Board notes at this point that the RO has taken
appropriate action to comply with the duty to assist the
veteran with the development of his claims. The record
includes VA treatment records and VA compensation and
treatment examination reports with opinions, dated
November 2004 and February 2007. There are no known
additional records to obtain. A hearing was offered, the
veteran agreed, and it was held before a hearing officer at
the RO in April 2004. As such, the Board finds that the
record as it stands includes sufficient competent evidence to
decide this claim. See 38 C.F.R. § 3.159(c)(4). Under these
circumstances, the Board finds no further action is necessary
to assist the veteran with his claim.
II. Compensation pursuant to 38 U.S.C.A. § 1151
VA statutory law provides that compensation may be paid for a
qualifying additional disability or qualifying death, not the
result of the veteran's willful misconduct, caused by
hospital care, medical or surgical treatment, or examination
furnished the veteran when the proximate cause of the
disability or death was: (A) carelessness, negligence, lack
of proper skill, error in judgment, or similar instance of
fault on the part of VA in furnishing the hospital care,
medical or surgical treatment, or examination; or (B) an
event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West
2002).
A VA final rule provided regulations, in essence, codifying
the requirements for benefits under 38 U.S.C.A. § 1151(a).
This change became effective September 2, 2004. 69 Fed. Reg.
46426 (Aug. 3, 2004) (including the codification of 38 C.F.R.
§ 3.361 which applies to such claims filed on or after
October 1, 1997, and revising 38 C.F.R. § 3.358 to state that
the section only applied to claims filed before October 1,
1997). A review of the record reveals that the veteran
submitted his claim for compensation in September 2002.
Regulations now provide that benefits under 38 U.S.C.A.
§ 1151(a), for claims received by VA on or after
October 1, 1997, for additional disability or death due to
hospital care, medical or surgical treatment, examination,
training, and rehabilitation services, or compensated work
therapy program, require actual causation not the result of
continuance or natural progress of a disease or injury for
which the care, treatment, or examination was furnished,
unless VA's failure to timely diagnose and properly treat the
disease or injury proximately caused the continuance or
natural progress. The additional disability or death must
not have been due to the veteran's failure to follow medical
instructions. 38 C.F.R. § 3.361.
It must be shown that the hospital care, medical or surgical
treatment, or examination caused the veteran's additional
disability or death and that (i) VA failed to exercise the
degree of care that would be expected of a reasonable heath
care provider or that (ii) VA furnished the hospital care,
medical or surgical treatment, or examination without the
veteran's or, in appropriate cases, the veteran's
representative's informed consent. To establish the
proximate cause of an additional disability or death it must
be shown that there was carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on VA's part in furnishing hospital care, medical or surgical
treatment, or examination. Whether the proximate cause of a
veteran's additional disability or death was an event not
foreseeable in each claim is to be determined based on what a
reasonable health care provider would have foreseen. The
event need not be completely unforeseeable or unimaginable
but must be one that a reasonable health care provider would
not have considered to be an ordinary risk of the treatment
provided. In determining whether an event was reasonably
foreseeable, VA will consider whether the risk of that event
was the type of risk that a reasonable health care provider
would have disclosed in connection with the informed consent
procedures of 38 C.F.R. § 17.32. Id.
The veteran and his representative claim, in this case, that
the veteran has residuals associated with a fracture of the
right knee, to include traumatic arthritis and an ACL tear,
due to VA's failure to timely diagnose and treat his right
knee. They maintain that the veteran reinjured his right
knee, and when seen by VA, they scheduled an appointment two
months later. It is contended by the veteran that he has
additional disability to the right knee because treatment, to
include surgery, was not immediately performed.
Based upon the evidence of record, the Board finds
entitlement to compensation for an additional disability for
the aforementioned residuals associated with a fracture of
the right knee, to include traumatic arthritis and an ACL
tear, as a result of lack of VA treatment, is not warranted.
VA outpatient treatment records show that the veteran was
seen on December 13, 2001, with a history of right ACL
injury, two repairs, the most recent on October 23, 2001. He
complained of slipping and hyperextending his right knee on
December 10, 2001. He complained of right knee swelling,
warmth, and pain with flexion. He was able to ambulate with
knee immobilized in place. He was seen in the acute care
clinic (ACC) for further evaluation. Physical examination of
the right lower extremity revealed a large effusion of the
right patellar area without point tenderness. Warm to
palpation, passive extension to 160 degrees, and passive
flexion to 80 degrees was also noted. The examiner expressed
concern for repeat ACL injury. The examiner prescribed the
use of a knee immobilizer and crutches for weight bearing
assistance, nonsteroidal anti-inflammatory drugs (NSAIDs) for
inflammation, scheduled a knee MRI to evaluate ligamentous
injury, and set up an orthopedic consultation for evaluation
and possible surgical repair. The attending physician on
staff agreed with the resident and this was reflected in a
written addendum to the resident's findings.
Dayspring Medical Center records were obtained and associated
with the claims folder. On December 27, 2001, the veteran
was seen at Dayspring Medical Center for prescription renewal
for management of chronic pain due to post traumatic injury
of the right lower extremity involving an ACL tear repair.
This was subsequent to an automobile accident that resulted
in an ACL tear and a fractured patellar. The records show
that he presented with improved ambulation since his ACL
repair completion. It was noted that the veteran required a
cane for stability and a crutch for support and stability to
reduce weight bearing on his right knee.
In February 2002, the veteran was seen by VA for his
orthopedic consultation. The examiner indicated that the
veteran brought in outside films dated the day of the injury
which showed a comminuted fracture of the patella that day.
It was noted that he was seen at Occupational Safety and
Health Administration (OSHA) and was told that he had
fractured his kneecap. He did not follow up with an
orthopedist as instructed. Physical examination revealed
that his right knee lacked 5 degrees of extension, there was
a well-healed incision, and superior riding patella. Motor
strength was intact. The assessment was that the veteran had
a patella fracture that was approximately eight weeks old.
He had outside films that showed the date of injury. He
refused treatment. He indicated that he was moving to
Florida in 90 days and stated that he would seek treatment
there. The orthopedic team stressed the importance of
possible early surgical intervention, but the veteran was not
willing to consider this. The veteran was told that he may
do more damage to his knee and that he may limit the possible
treatment by delaying treatment. Despite warnings, he did
not want to be treated at the Durham VA. He was informed
that because he was not seeking treatment, his knee may have
a poor long term outcome, with pain, and post-traumatic
arthritis. He was also informed that a total knee
arthroplasty (TKA) may be a difficult procedure due to the
untreated patella fracture. Despite warnings, the veteran
did not want to be treated at the Durham VA.
The veteran testified at a RO hearing before a hearing
officer in April 2004. The veteran testified that he
reinjured his right knee when he fell at the entrance of the
business he worked for. He related that he retore his ACL
when he fell, and he then went to the ACC at the Durham VAMC.
He stated that a MRI was scheduled, which was later
cancelled, and an appointment was made to see an orthopedist
in February 2002. He testified that he was to move to
Florida in the middle of the summer, and that was why he
refused surgery in February. He also testified that he
should have gotten the surgery in December, when he went to
VA, and that he would have accepted surgery at that time
because of the severity of the pain at that time. He also
testified that because he did not receive surgery in December
2000, his knee worsened. The veteran also indicated that he
did not see anyone regarding his right knee from December
2001 to February 2002.
Pursuant to the Board's June 2006 remand, the veteran
underwent a VA examination in February 2007. The diagnoses
were internal derangement of the right knee, status post ACL
repair, times two, with nonunited comminuted right patellar
fracture, with residuals of degenerative joint disease (DJD).
The examiner stated that in his opinion, the veteran's right
knee should have been x-rayed at the time of the visit to the
emergency room in December 2001. He stated that if the
veteran had been x-rayed, it was more likely than not that
the veteran would have been discovered to have the right
patellar fracture, which would have initiated treatment at
that time. He also opined that the veteran had previous
damage to the right knee, which was very well documented. He
had arthritis in the knee, antedating the second ACL repair
in 2001. The veteran was offered therapy in the form of
surgery and other treatments in February 2002, and he
refused. There was no doubt that he had continued problems
up to the time of the examination. The examiner indicated
that whether the veteran's presenting problems were the
result of delay in making the diagnosis of the fragmented
right patella, or were the result of the veteran's refusal to
accept treatment in February 2002, could not be stated, in
his opinion, without resorting to unfounded speculation.
At the outset, it is important to note that in order to
warrant compensation under the provisions of 38 U.S.C.A.
§ 1151, there must be a showing of additional disability as a
result of medical treatment. In this case, there is no
competent medical evidence that shows that the veteran has
additional disability due to or the lack of medical
treatment. The only medical evidence to address this issue
is the VA medical opinion provided by the examiner who
performed the veteran's February 2007 VA examination. It was
his opinion that one would have to resort to unfounded
speculation to conclude that the veteran has additional
disability of the right knee that was due to delay in making
the diagnosis of the fractured patella.
The only evidence indicating that VA's failure to timely
diagnose and treat the veteran's right knee condition caused
additional disability to his right knee, is the veteran's own
statements of such. These statements are not probative,
since as a layperson he is not competent to provide medical
opinions that otherwise require medical expertise. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Finally, the veteran's statements in and of themselves, are
of doubtful credibility. The veteran testified at his RO
hearing that he did not see any medical personnel for his
condition from December 2001 to February 2002. Medical
evidence of record shows that the veteran was seen in
December 2001 at the Dayspring Medical Center for pain
management and prescription. Those records show that the
veteran's right knee ambulation was improving since his ACL
tear repair, and that he used a cane and crutch for support.
Further, VA records showed that the veteran's x-rays that he
brought to VA and which were taken by OSHA on the day of the
accident, showed that he had a fractured patella, and the VA
records indicated that he should be seen by an orthopedist,
but he did not follow-up as instructed at that time. At no
time does the medical evidence reflect that the veteran
informed VA medical personnel in December 2001, that he had a
fractured patella, evidenced by x-ray films taken the day of
the injury. Specifically, the veteran testified that he had
not seen other medical personnel until his February 2002 VA
orthopedic consultation and that this delay, was the cause of
additional disability. In fact, he knew of the patellar
fracture through x-ray films taken by OSHA, and was
instructed to see orthopedic help at that time. The veteran
failed to show those films initially to VA, and failed to
make known that he had a fractured patella. Therefore, his
RO testimony, VA medical evidence, and medical evidence from
Dayspring Medical Center, show that the veteran's testimony
was of doubtful credibility and also shows that he was aware
of his condition as early as December 10, 2001, the day of
the injury.
Based on the foregoing, the Board finds that entitlement to
compensation for residuals, associated with a fracture of the
right knee, to include traumatic arthritis and an ACL tear,
based on the provisions of 38 U.S.C.A. § 1151, is not
warranted.
II. TDIU
Total disability ratings for compensation may be assigned
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities: Provided
that, if there is only one such disability, this disability
shall be ratable at 60 percent or more, and that, if there
are two or more disabilities, there shall be at least one
disability ratable at 40 percent or more, and sufficient
additional service-connected disability to bring the combined
rating to 70 percent or more. 38 C.F.R. § 4.16(a).
Substantially gainful employment is defined as work which is
more than marginal and which permits the individual to earn a
living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).
The veteran's service connected disabilities include right
median nerve palsy with probable neuroma, rated 50 percent
disabling, callus of the left foot, rated 10 percent
disabling, callus of the right foot, rated 10 percent
disabling, and tender scar, right wrist, associated with the
right median nerve palsy with probable neuroma, rated as 10
percent disabling. The combined rating is 70 percent. He
does meet the schedular criteria for consideration of a TDIU
rating under 38 C.F.R. § 4.16(a). Thus, it now must be
determined if the veteran's service-connected disabilities
alone prevent him from being able to secure or follow a
substantially gainful occupation as a result of service-
connected disabilities.
For a veteran to prevail on a claim based upon
unemployability, it is necessary that the record reflect some
factor which places the case in a different category than
other veterans with equal rating of disability. Van Hoose v.
Brown, 4 Vet. App. 361 (1993). The question is whether the
veteran is capable of performing physical and mental acts
required by employment, not whether the veteran can find
employment. Id.
In this case, the evidence shows that the veteran has been
unemployed since 2002. He is a high school graduate and
indicates that he has three years of college. In a March
2004 notice of decision, the veteran received a favorable
decision in his Social Security disability claim. The
veteran's disabilities for social security disability
purposes include residuals of bilateral knee fractures, right
upper extremity median nerve damage, and pain syndrome of the
left ankle. The veteran is not service-connected for
bilateral knee fractures or pain syndrome of the left ankle.
The veteran testified at a RO hearing in April 2004. The
veteran testified that he stopped work on his own and it was
not his doctor or his employer that stopped him. He
testified that he would be walking and would pick up a piece
of metal, and fall. He stated that he did not have full
strength in his right hand. He stated that the calluses of
his feet hurt, and that he needed to use his left hand as he
was unable to lift well with his right hand.
The veteran indicates on an April 2004 Application for
Compensation for Unemployability, that he had specialized
training as a tool and die machinist. The evidence of record
shows on his November 2004 VA examination report, that he has
had callus formation, one of his service-connected
disabilities, since 1975. He had no swelling or stiffness of
the feet. He did have flare-ups of foot pain with prolonged
walking or prolonged standing of more than five to ten
minutes. The calluses exhibited mild tenderness to pressure.
There was no evidence of skin breakdown. There was also no
evidence of peripheral vascular disease of either foot.
Also, in November 2004, the veteran's service-connected right
wrist median nerve damage and scar were evaluated by two
other examiners. The veteran switched to using his left
hand. It was noted that he has had right wrist laceration
for 28 years with preserved dexterity, strength, bulk, and
sensation. The examiner stated that the veteran's calluses
did not interfere with his activities, and that the right
hand laceration did not interfere with his grip, sensation,
or reflexes on the right side. Another examiner did indicate
that the veteran's job he had for 30 years, working in tool
and die, required handiwork. Although he learned to use his
left hand after sustaining a right wrist injury, he stated
that he was not able to use his left hand as well. The
examiner's opinion was that the veteran's right wrist and
feet calluses condition had great impact on his ability to
work as a tool and die worker. He would require further
training to assume a sedentary job. Both the veteran's right
knee pain with severe loss of range of motion, and back pain
with mild limitation of motion, were raised as disabilities.
The veteran is neither service-connected for his right knee
nor back disabilities.
After a total review of the record, the veteran's service-
connected disabilities alone do not prevent him from
obtaining substantially gainful employment. One examiner
stated that the veteran's calluses do not interfere with his
activities and his right hand laceration does not interfere
with his grip, sensation, reflexes. Another examiner stated
that the veteran's right hand and his bilateral calluses have
a great deal of impact on his ability to work in a tool and
die job, and that he would require further training to assume
a sedentary job. Although his right hand and bilateral
calluses may somewhat affect his profession as a tool and die
maker, they do not prevent him from other employment, which
may be substantially gainful in nature. The veteran has
completed high school and has some college education. He is
able to do sedentary employment, and his complaints of
bilateral knees, and his left ankle disabilities, are not
service-connected, and can not be considered for TDIU. The
evidence of record does not show that the veteran's service-
connected disabilities alone, prevent the veteran from
obtaining all forms of substantially gainful employment.
Given the foregoing, the Board concludes that the
preponderance of the evidence is against the claim of
entitlement to a TDIU. 38 C.F.R. § 4.16 (2007).
ORDER
Compensation under 38 U.S.C.A. § 1151 for an additional right
knee disability is denied.
A TDIU is denied.
____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs